Gujarat High Court
Janardan Ramashray Kashyap vs State Of Gujarat on 1 February, 2024
NEUTRAL CITATION
R/SCR.A/9491/2018 ORDER DATED: 01/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO.
9491 of 2018
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JANARDAN RAMASHRAY KASHYAP
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR UDAY R BHATT(192) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 01/02/2024
ORAL ORDER
1. Assailing the order dated 17.07.2018 passed in Criminal Case
No. 29596 of 2012 by the learned Chief Judicial Magistrate, Surat,
whereby, the application filed under Section 239 of the Criminal
Procedure Code, 1973 (CrPC) seeking discharge of the petitioner
from the criminal case pending before the trial Court, was dismissed,
the present special criminal application under Article 226 of the
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R/SCR.A/9491/2018 ORDER DATED: 01/02/2024
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Constitution of India has been filed.
2. Facts relevant to dispose of the present petition may briefly
stated as follow:
2.1 On a report lodged by the de facto complainant, a case in
crime No. 15/2022 was registered with Surat DCB Police Station,
Surat for the offences punishable under Sections 406, 420, 465, 467,
468, 471 and 120-B Indian Penal Code, 1860 (IPC) on 05.05.2012.
The crime was investigated and eventually, after completion of
investigation, the Investigating Officer has filed the charge-sheet in
the trial Court on 05.10.2012. The petitioner is an Advocate by
profession and he is shown as A-9 in the above charge-sheet. The
main allegation that was made against him is that he has cooperated
with the main accused - Yogesh Jagdishbhai Patel to fabricate the
document in question and to commit the other offences.
2.2 After the charge-sheet was filed and when the case stood
posted for framing charges, the petitioner, who is A-9, filed the
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petition under Section 239 of the CrPC seeking discharge on the
ground that no case is made out against him to frame any charge
against him and to prosecute him for the said offences and that he
has absolutely no connection whatsoever with the other accused in
the crime. The said petition came to be dismissed by the impugned
order.
2.3 Aggrieved thereby, challenging the legality and validity of the
said order dismissing his petition to discharge him, the present
petition under Article 226 of the Constitution of India has been filed
inter alia praying that the petitioner is an Advocate by profession
and that, by implicating him in the said criminal case, his
fundamental rights are violated.
2.4 On the said ground and on the other grounds which are urged
in the present petition, the petitioner has invoked the extraordinary
jurisdiction of this Court under Article 226 of the Constitution of
India to challenge the impugned order dismissing his discharge
petition.
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3. Having regard to the order which is being challenged in this
petition, this Court of the opinion that this petition can be disposed
of on the ground of its maintainability.
3.1 As per settled law, an order passed in discharge petition, either
allowing the same or dismissing the same, is construed to be an
intermediate order / quasi final order, which is amenable to
revisional jurisdiction under Section 397(1) of the CrPC, to
challenge the same by an aggrieved person. It is not an interlocutory
order so as to attract the bar contained in Section 397(2) of the
CrPC. The three Judge Bench of the Apex Court in the case of
Madhu Limaye v. The State of Maharashtra, AIR 1978 SC 47, has
clearly held that, a revision against the order passed in a petition
filed by the accused to discharge him in the criminal case would be
competent and maintainable.
3.2 The above judgment is the authoritative pronouncement on
legal position relating to maintainability of revision against an order
passed in the discharge petition. The said orders are construed as
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intermediate orders or quasi final orders against which, revision
under Section 397(1) of CrPC is maintainable and the same is not hit
by the bar contained in Section 397(2) of the CrPC to maintain a
revision against an interlocutory order.
3.3 Thus an order passed in the discharge petition is an
intermediate order / quasi final order against which revision under
Section 397(1) of the CrPC is maintainable. Therefore, when
efficacious remedy is available to the petitioner to challenge the
impugned order by way of invoking the revisional jurisdiction under
Section 397(1) of the CrPC, which is concurrent jurisdiction
conferred both on the Sessions Judge and the High Court, the
petitioner has to pursue the said remedy and he cannot, in the given
facts and circumstances of the case, invoke the extraordinary
jurisdiction of this Court under Article 226 of the Constitution of
India. Therefore, without touching the merits and without going into
the merits of the case, this Court is of the opinion that this petition
can be disposed of with a direction to the petitioner to invoke the
revisional jurisdiction under Section 397(1) of the CrPC to challenge
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the impugned order.
4. Resultantly, this petition is dismissed as not maintainable.
However, the petitioner is at liberty to file revision under Section
397(1) of the CrPC to challenge the impugned order dismissing the
discharge petition. In case he files the revision petition, the time
spent during pendency of this petition under Article 226 of the
Constitution of India in this Court, shall be excluded in computing
the period of limitation. Further, the petitioner is at liberty to raise
all the contentions that are now raised including the one relating to
violation of his fundamental rights, in the said revision application.
4.1 The registry is directed to return the certified copy of the
impugned order of the trial Court as well as other material papers to
the petitioner within a week from the date of this order to enable him
to prefer the revision.
[ Cheekati Manavendranath Roy, J. ]
hiren
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